Health Care

A Supreme Feud Over Birth Control: Four Blunt Points

Anti-abortion advocates cheer in front of the Supreme Court after the decision in Washington, on June 30

Get ready for a long period of acrimony and confusion over whether companies and nonprofits invoking religious beliefs can evade the Obama administration’s requirement that employers providing health insurance cover birth control for female employees.

The Supreme Court ruled 5-4 on June 30 in the Burwell v. Hobby Lobby Stores case that closely held, for-profit corporations may invoke religious liberty to avoid compliance with the contraception-coverage mandate in the president’s 2010 health-care reform law. Then on July 3, an unspecified majority of the high court temporarily exempted a Christian college from a modest paperwork obligation imposed by the Affordable Care Act (ACA)—an obligation that the conservative majority appeared to have endorsed just four days earlier in Hobby Lobby.

Confused? No wonder. Herewith, four blunt points to clarify—at least to the degree that clarification is possible.

1. The Supremes did something strange on July 3. In a brief, unsigned order, the court said that Wheaton College of Illinois did not have to comply with an ACA provision allowing nonprofit, religiously-oriented organizations opposed to contraception to transfer the responsibility to provide free birth control to insurance companies. The court’s granting of an injunction to Wheaton was odd because in his majority opinion in Hobby Lobby, Justice Samuel Alito indicated that the very forms the college refused to fill out provided an acceptable alternative to forcing an employer to pay for contraceptive coverage.

Another peculiar aspect of the Wheaton decision was that the justices’ normal practice is to grant such emergency injunctions without having heard a case on the merits only in extenuating circumstances and when the law surrounding a controversy is crystal clear. A hypothetical illustration: an injunction ordering the admission of a black child to a public school that insisted on racial segregation in defiance of Brown v. Board of Education. Given the newness of Hobby Lobby and the ambiguity over what Alito meant vis-à-vis the adequacy of the exemption forms, it’s beyond strange that the court would rush to issue an injunction favoring Wheaton.

2. The three women justices were not amused. Yet another unusual element of this episode is that the female members of the high court—Justices Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan—angrily dissented in unison. In an opinion with unmistakable gender-related overtones, Sotomayor accused the male justices of distorting the meaning of Hobby Lobby and heightening tension in an area of raw social controversy. “Those who are bound by our decisions usually believe they can take us at our word,” Sotomayor wrote. “Not so today.” She added that the majority’s action “undermines confidence in this institution.”

The court didn’t reveal how most of the justices voted. Justice Stephen Breyer, who joined the three women members of the court in dissent from the Hobby Lobby case, didn’t sign onto the Sotomayor protest in the Wheaton ruling.

3. Wheaton’s victory seems highly theoretical. “The court rightly recognized that Wheaton’s religious community should be allowed to practice its faith free from crushing government fines.” That was the celebratory statement of Mark Rienzi, a lawyer with the Becket Fund for Religious Liberty, which represents the college. The fines to which Rienzi referred are the penalty employers ordinarily face if they fail to comply with the ACA. The health reform statute specifically allows organizations like Wheaton to send paperwork to their insurance companies, which then pay for contraceptive coverage. Wheaton filed suit to avoid sending the forms because the college’s leadership believes that doing so would still facilitate women ultimately receiving birth control.

The high court’s July 3 decision said that instead of sending forms to insurance companies, Wheaton should notify the government directly that it objects on religious grounds to covering contraception. Presumably, the government would then turn around and tell Wheaton’s insurer, and the women in question would still receive birth-control coverage. The high court majority said that in the end, all of Wheaton’s employees (and students) would have access to all forms of contraception approved by the Food and Drug Administration—and at no cost.

So how, exactly, is Wheaton’s religious liberty better protected by sending a letter to a government bureaucrat as opposed to an insurance company bureaucrat? Apparently this entire fight is about an added layer of paperwork. That seems weird.

On the other hand, if for obscure reasons of spiritual symbolism, a religiously-oriented institution prefers to correspond with Washington rather than an insurer in Hartford, what are the women justices so worked up about? The answer to that one is more obvious. Sotomayor and her sister justices worry that their male colleagues (minus Breyer) are overly eager to expand on Hobby Lobby, injecting religious roadblocks not just to the functioning of the ACA but to other federal regulation as well.

4. The Supreme Court, like the rest of American society, seems swept up in a culture war without boundaries or end. Res ipsa loquitur, a Latin legalism meaning, “the thing speaks for itself.”

Barrett is an assistant managing editor and senior writer at Bloomberg Businessweek. His new book, Law of the Jungle, tells the story of the Chevron oil pollution case in Ecuador.